Supreme Court Says Civil Asset Forfeiture Violates Constitutional Protections Against Excessive Fines

from the time-to-start-breaking-up-the-blue-line-cartel dept

Great news on the asset forfeiture front, courtesy of the highest court in the land. The Supreme Court has ruled that forfeitures can violate the Eighth Amendment's protections against excessive fines.

The case the Supreme Court ruled on deals with Indiana native Tyson Timbs. Timbs sold $260 worth of heroin to undercover officers. He pled guilty to criminal charges. The state decided to forfeit his $42,000 Land Rover via civil asset forfeiture, routing around the criminal system to make it easier for cops to make off with his vehicle. Timbs challenged this forfeiture as an excessive fine, given that the max fine for his criminal charges was $10,000.

This case made its way to the state's Supreme Court, which overturned the lower court's decision finding in favor of Timbs and the US Constitution, which Indiana had incorporated. The state's highest court stated that this clause of the Eighth Amendment did not apply to civil asset forfeiture. This was a bizarre position to take, as the Supreme Court pointed out during oral arguments.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?

MR. FISHER: Well, again, that depends.

JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.

MR. FISHER: Right.

JUSTICE GORSUCH: And here we are in 2018 -­

MR. FISHER: Right.

JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

The Supreme Court's decision [PDF] makes it clear the US Constitution protects citizens from excessive fines, even if those fines are meted out at the state level. If the Constitution has been incorporated by the states (and it has!), the protections apply.

Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Pp. 2–9. (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.

The state tried to argue the protections only covered in personam (vs. a person) forfeiture -- the kind normally seen in criminal cases where property is seized as compensation for fines or as direct, provable ill-gotten goods obtained as the result of criminal activity.

In rem forfeiture -- the civil route -- lowers the evidentiary bar law enforcement must meet to take property away from citizens. In most cases, there are no criminal charges involved -- only accusations of criminal origin that force citizens to prove a negative to reclaim their seized property.

Here's where this decision has the chance to disrupt a majority of states' civil asset forfeiture programs: the Supreme Court says these incorporated protections also apply to in rem seizures.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.

Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.

So, the rhetorical question posed by this decision is one that's going to be asked of hundreds of state-level civil asset forfeiture programs: if there are no criminal charges, wouldn't ANY seizure of property be "excessive?" It certainly appears a lack of criminal charges would be fatal to in rem seizures, which almost always happen without accompanying charges. This case may not have been specifically about civil asset forfeiture, given Tyson Timbs' guilty plea, but the state made it about it by refusing to acknowledge its incorporation of the Bill of Rights.

This may start a scramble by law enforcement to suss out just how much of the Bill of Rights their particular state has incorporated. Given the Supreme Court's disdain for arguments to the contrary, pushing legal challenges to forfeiture programs uphill is a non-starter. This case was a 9-0 rout in favor of protecting Americans from excessive fines and fees -- in this case taking the form of civil asset forfeiture. This hopefully will be the starting point for nationwide reform of these abusive programs.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, excessive fines, excessive punishment, incorporation, indiana, scotus, states rights, supreme court, trevor timbs


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  1. icon
    James Burkhardt (profile), 22 Feb 2019 @ 12:23pm

    Re: Re:

    This case did not challenge CAF. Instead, the arguments heard by the judges were specifically that the forfeiture violated the 8th amendment bar of excessive fines. As is the right tradition of the supreme court, they only rule on the issues in front of them, and as is the somewhat more questionable decision, try to narrowly answer only the arguments put before them, even when they hint there is an adjacent issue that can resolve a broader argument.

    The court notes several times that the substantive arguments of if civil asset forfeiture as a program is legal are beyond the scope of this challenge largely because it is undeniable whether CAF is legal or not, that the facts in this case mean the forfeiture was in violation of the 8th amendment, and since that was the challenge, it resolves the case in the narrow fashion the court prefers.

    Likely, in this case, as a convicted felon who plead guilty, the appellant felt challenging CAF entirely might have a negative perception by the court, that he was challenging any fine applied. Or perhaps that he was unsure how the court would rule on asset forfeiture as a while and felt the excessive fines challenge was a more solid challenge that didn't face the same risk while serving to accomplish the goal, the return of the vehicle.

    With this ruling and the signalling of the court's ruling, you can expect a glut of 8th amendment challenges to civil forfeiture cases. This may lead to a future supreme court case where a state chooses to fight to the hilt, likely over a forfeiture not connected to a criminal conviction, that provides the court with an opportunity to rule on civil forfeiture.

    That hypothetical case will likely need to have several factors.

    1) A high value forfeiture. It needs to be worth the cost of litigation to both the owner of the property and the agency which seized it. Most asset forfeiture isn't worth fighting the forfeiture.

    2) The person whose property is forfeited must be left with the financial resources to challenge the forfeiture. Many large forfeitures from innocents tend to ruin the person as they are carrying what can be described as 'life savings'.

    3) The lower courts need to rule for the forfeiture, or the agency must be willing to appeal the return of the forfeited funds. Most cases that are challenged don't reach the supreme court. Legal challenges to seizures that meet components 1 & 2 either run out of money or are successful before they reach that point. This becomes the big issue, as you are unlikely to get the supreme court to hear an appeal of a lower court victory on the basis that you want a broader precedent, and I can't think of a case where a deep pocketed forfeitee with no associated criminal charges has lost anywhere close to the SCOTUS.

    I think the best case will be a relatively well off but not famous individual who faces forfeiture of enough value to matter but not enough for them to worry about losing and makes purely constitutional argument challenging the civil forfeiture program entirely, denying the courts the out that this individual seizure was invalid, and forcing litigating the issue of civil forfeiture as policy. It still might be dropped by the state, returning the property and denying standing to challenge CAF.


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